Perisho v. Board of Health of Stow ( 2023 )

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22-P-908 Appeals Court
MICHAEL J. PERISHO & others1 vs. BOARD OF HEALTH OF STOW &
others.2
No. 22-P-908.
Middlesex. September 11, 2023. – December 13, 2023.
Present: Milkey, Blake, & Sacks, JJ.
Practice, Civil, Action in nature of certiorari, Standing,
Judgment on the pleadings, Motion to dismiss. Municipal
Corporations, Board of health. Department of Environmental
Protection. Administrative Law, Regulations. Real
Property, Water, Nuisance, Trespass. Nuisance. Trespass.
Sewage Disposal.
Civil action commenced in the Superior Court Department on
July 10, 2020.
A motion to dismiss was heard by Joshua I. Wall, J., and
the remaining claim also was heard by him on motions for
judgment on the pleadings.
Daniel C. Hill for the plaintiffs.
Amy E. Kwesell for town of Stow.
1 Jeremy M. Perisho, Huy D. Le, Kelly N. Melcher, and James
Olsson.
2 Town of Stow and Habitat for Humanity, North Central
Massachusetts, Inc.
2
David Y. Bannard for Habitat for Humanity, North Central
Massachusetts, Inc.
SACKS, J. The plaintiffs, who are abutters or near
neighbors to a proposed two-family affordable housing
development in Stow, brought this action in the Superior Court
seeking certiorari review of a decision of the board of health
of Stow (board) granting a septic system construction permit
(permit) to the developer, Habitat for Humanity of North Central
Massachusetts, Inc. (Habitat). The plaintiffs, to whom we will
refer as abutters,3 allege that pollution from the septic system
would cause nitrogen levels at the private wells serving their
homes to exceed the level set by State drinking water
regulations. They allege that "[t]he presence of elevated
levels of [n]itrogen in wells is an established indicator of the
presence of other contaminants commonly associated with domestic
wastewater, including viruses and pharmaceuticals." The
abutters also assert claims for private nuisance and trespass
against Habitat, seeking injunctive relief.
After agreeing that the abutters had standing to challenge
the board's decision, a judge affirmed that decision on the
merits, thereby upholding the permit. In a separate ruling, the
3 The plaintiffs Le and Melcher own and live in a home
abutting the locus. The Perishos and Olsson own and live in
homes located across a public way from the locus. Each of the
three homes is served by its own private well.
3
judge dismissed the nuisance and trespass claims without
prejudice for failure to state a claim, because the abutters had
not pleaded an actual or inevitable invasion of or entry on
their land. On the abutters' appeal, we affirm so much of the
judgment as upheld the board's decision issuing the permit; we
reverse the dismissal of the nuisance and trespass claims and
remand for further proceedings.
Background. Under the Title 5 regulations issued by the
state Department of Environmental Protection (DEP), 310 Code
Mass. Regs. §§ 15.001 (2014), construction of a septic system
generally requires a permit from a local board of health. See
310 Code Mass. Regs. § 15.020 (2014). In 2017, Habitat applied
to the board for such a permit for the locus, a 1.26 acre parcel
on a hillside in Stow. Habitat's septic system plans called for
wastewater from the two new homes to flow into the system's pump
chamber and septic tank and then be pumped uphill to a leaching
field on a slope behind the homes. The abutters' wells are
located downhill from the proposed leaching field, at distances
of approximately 120-150 feet. The abutters claim that
wastewater discharged from the leaching field will mix with
groundwater and then flow downhill toward their wells.
The board chose James Garreffi of the Nashoba Associated
Boards of Health to review the permit application. Over the
course of a more than two-year review process, the board
4
received and considered comments from the abutters' hydrologist,
Scott Horsley,4 and the abutters' counsel, opposing issuance of
the permit. The abutters argued, among other things, that
(1) based on a "mass balance analysis" performed by Horsley, the
system would cause excessive nitrogen levels at the abutters'
wells; and (2) the plans did not show compliance with Title 5
regulations that require a four-foot vertical separation between
the bottom of the soil absorption system and existing
groundwater levels.
The board received substantial input from Habitat's
engineering firm, Stamski and McNary, Inc. (Stamski), addressing
the abutters' concerns and responding to some of them by making
changes to the plans. In addition, the board obtained a review
of the plans from the engineering firm of David E. Ross
Associates, Inc. (Ross). Ross's review also found "no issues
relative to compliance with Title 5." Garreffi ultimately
concluded that the plans met "the requirements of Title 5." The
board issued the permit in March of 2020.
4 Although Horsley was not formally qualified as an expert
in these proceedings, the record includes his affidavit
attesting to his more than "thirty years of experience in
evaluating water resources projects, including the interaction
of groundwater, stormwater runoff and sources of water
pollution." He asserts that he has "been an expert witness in
several prior litigation matters in state court as well as
administrative appeals before the DEP."
5
The abutters then commenced this action seeking certiorari
review of the board's permit decision and separately asserting
nuisance and trespass claims against Habitat. On Habitat's
motion to dismiss the latter claims for failure to state a claim
on which relief could be granted,5 the judge ruled, as noted
supra, that the abutters had not pleaded any actual or
inevitable invasion of or entry on their land. He dismissed the
claims without prejudice.6
5 Habitat supported its motion with an affidavit from its
engineering firm, Stamski, asserting that if the system were
installed and maintained as designed, "no effluent from the
sewage disposal system will adversely impact abutting land. The
system, as designed, is intended and expected to protect
neighboring properties, including wells located on such land,
from contamination by effluent leaching from the system."
Habitat also submitted an affidavit from its executive director,
recounting the lengthy review and approval process and noting
that the affordable housing project development itself, first
proposed in 2016, was being further delayed by the abutters'
action. The abutters, for their part, submitted affidavits
contesting Habitat's assertions. Nothing in the judge's
decision, however, relied on any of these materials in ruling on
the motion to dismiss the nuisance and trespass claims or in
resolving the certiorari claim.
6 The abutters then unsuccessfully sought interlocutory
relief from a single justice under G. L. c. 231, § 118, first
par. Habitat now argues that the abutters' remedy was to appeal
the single justice's order and that this appeal from the
Superior Court's final judgment is foreclosed. The single
justice's order was not appealable as of right, however, and the
present appeal is proper. See Brauner v. Valley, 101 Mass. App.
Ct. 61, 68-69 (2022). Nor, contrary to Habitat's argument, was
the single justice's order a final judgment giving rise to claim
or issue preclusion.
6
Subsequently, on the certiorari claim, the judge first
rejected the board's and Habitat's argument that the abutters
lacked standing to challenge the board's decision. On the
merits, however, the judge ruled that Title 5 regulations did
not require the board to apply the mass balance analysis
underlying Horsley's nitrogen level predictions, and that
sufficient evidence supported the board's conclusion that the
four-foot vertical separation requirement was met. This appeal
followed.
Discussion. We first address the certiorari claim, as that
discussion will inform our review of the nuisance and trespass
claims.
1. Certiorari. "To obtain certiorari review of an
administrative decision, the following three elements must be
present: (1) a judicial or quasi judicial proceeding, (2) from
which there is no other reasonably adequate remedy, and (3) a
substantial injury or injustice arising from the proceeding
under review." Indeck v. Clients' Sec. Bd., 450 Mass. 379, 385
(2008). Certiorari review "is calibrated to the nature of the
action for which review is sought," Revere v. Massachusetts
Gaming Comm'n, 476 Mass. 591, 604 (2017), and thus may involve
either the substantial evidence standard or the arbitrary and
capricious standard. See id. at 604-605. The abutters assert
that both standards apply. Ultimately we need not decide which
7
standard applies, because we conclude the board's decision is
neither unsupported by substantial evidence nor arbitrary and
capricious.
a. Standing. To have standing to seek certiorari review,
the abutters must show "a reasonable likelihood that [they have]
suffered injury to a protected legal right." Higby/Fulton
Vineyard, LLC v. Board of Health of Tisbury, 70 Mass. App. Ct.
848, 850 (2007). See Hickey v. Conservation Comm'n of Dennis,
93 Mass. App. Ct. 655, 657 (2018). Here, the board contends
that the abutters' allegations of future harm are too
speculative and theoretical to support standing. See
Higby/Fulton Vineyard, LLC, supra at 851-852 (speculation is
insufficient). See also Hickey, supra at 658 (same). We are
not persuaded.
The abutters' complaint alleges, based on the mass balance
analysis furnished to the board by the abutters' hydrologist,
Horsley, that the proposed septic system would cause predicted
nitrogen levels at two of the abutters' wells to reach 27.3
milligrams per liter (mg/l) and 29.0 mg/l, in excess of State
drinking water standards of 10 mg/liter. Horsley stated that
his "analysis is conservative in that [he had] not added
fertilizer applications. Actual nitrate-nitrogen concentrations
will be higher." Although, as discussed infra, the board was
not obligated to give any particular weight to Horsley's
8
analysis, and had reason to question it, this is not fatal to
the abutters' standing.
Standing "does not require that the factfinder ultimately
find a plaintiff's allegations meritorious. To do so would be
to deny standing, after the fact, to any unsuccessful plaintiff.
Rather, the plaintiff must put forth credible evidence to
substantiate his allegations." Marashlian v. Zoning Bd. of
Appeals of Newburyport, 421 Mass. 719, 721 (1996). Where a
plaintiff has "presented credible evidence of injury to legal
rights of the type intended to be protected by the [governing
regulatory scheme], that [a] judge ultimately found that the
elevated nitrogen would not reach the plaintiff's well goes to
his success on the merits and not his ability to challenge the
acts of the board." Reynolds v. Zoning Bd. of Appeals of Stow,
88 Mass. App. Ct. 339, 346 (2015).7
This is not a case where plaintiffs' claims of injury are
raised "in a conclusory fashion, and [are unsupported by] expert
7 Marashlian and Reynolds were actions for judicial review
of zoning board decisions under G. L. c. 40A, § 17 -- a
proceeding that ordinarily requires fact finding by the court --
and thus are not fully applicable to a certiorari proceeding,
which ordinarily involves no such fact finding. Nevertheless,
the point remains that a plaintiff should not be required to
prove its case on the merits in order to establish standing to
challenge an administrative decision in the first place. Cf.
Revere v. Massachusetts Gaming Comm'n, 476 Mass. at 603-604(noting that standing to obtain certiorari review depends on
alleging injury to justiciable right, even if claim of
constitutional violation ultimately fails on merits).
9
evidence, technical analysis, or particular facts in the record
that establish [the purported risks]." Hickey, 93 Mass. App.
Ct. at 658. Nor is this a case where "the expert, having done
no calculations or testing, was unable to express any opinion
more specific or definitive than . . . references to potential,
likelihood, and possibility." Higby/Fulton Vineyard, LLC, 70
Mass. App. Ct. at 851. Finally, it is not a case where the
plaintiffs have failed to credibly allege "an injury different
in nature or magnitude from that of the general public."
Friedman v. Conservation Comm'n of Edgartown, 62 Mass. App. Ct.
539, 543 (2004). The abutters' specific allegations of likely
pollution of their private wells, supported by technical
evidence from a qualified hydrologist, are sufficient to
establish standing to challenge the board's decision.8 We
therefore proceed to the merits.
b. Well pollution. The abutters' first challenge to the
permit is that, based on Horsley's mass balance analysis, the
septic system will increase nitrogen in their wells to levels
above the 10 mg/l State drinking water standard. As the
8 Even if we viewed standing as doubtful, there is no
absolute rule that the question must be resolved in a
plaintiff's favor before reaching the merits, particularly where
the result in any event would be to leave an agency's decision
undisturbed. See Mostyn v. Department of Envtl. Protection, 83
Mass. App. Ct. 788, 792 & n.12 (2013). See also Green v. Zoning
Bd. of Appeals of Southborough, 96 Mass. App. Ct. 126, 129
(2019).
10
abutters recognized both in the board proceedings and on appeal,
however, Title 5 regulations do not require the board to apply
the mass balance analysis to Habitat's proposed system. This is
because the system's design flow of 436 gallons per day per acre
(GPDPA), falls below both the regulatory threshold of 440 GPDPA
for applying nitrogen loading limitations,9 and the 2,000 GPDPA
threshold established by DEP's "Guidelines for Title 5
Aggregation of Flows and Nitrogen Loading" (DEP guidelines) for
using a mass balance analysis to show that a system meets the 10
mg/l nitrogen standard.10 Habitat's engineer, Stamski, asserted
that the mass balance analysis was inapplicable, and the board's
9 Under 310 Code Mass. Regs. § 15.214 (2014) ("Nitrogen
Loading Limitations"), as relevant here, no septic system
serving new construction in either a designated "nitrogen
sensitive area" or an area where both an on-site system and a
drinking water supply well will serve the facility shall be
designed to receive or shall receive more than 440 [GPDPA]
"except as set forth at 310 [Code Mass. Regs. §] 15.216
(aggregate flows)." In turn, 310 Code Mass. Regs. § 15.216
(2014) ("Aggregate Determinations of Flows and Nitrogen
Loading") provides, as relevant here, that the 440 GPDPA
nitrogen loading limitation "may be calculated in the aggregate
by using nitrogen credit land in accordance with an approved
Facility Aggregation Plan," to be prepared in accordance with
DEP's "Guidelines for Title 5 Aggregation of Flows and Nitrogen
Loading."
10The DEP guidelines referenced in 310 Code Mass. Regs.
§ 15.216 provide, as relevant here, that, for septic systems
with a design flow from 2,000 to 10,000 gallons per day, a board
of health "may require" the project proponent to "demonstrate,
through a site-specific mass balance analysis, that the proposed
discharge will meet the groundwater quality standard of 10 mg/l
total nitrogen" at the "nearest sensitive receptor," which may
be a private well.
11
agent, Garreffi, agreed. Even assuming without deciding that
the DEP guidelines leave room for a board to exercise its
discretion to consider a mass balance analysis where none is
required, as the abutters argue, the board did not abuse its
discretion in declining to give the analysis dispositive weight,
for the following reasons.
Stamski reviewed Horsley's mass balance calculations and
asserted to the board that they were "grossly flawed." In
particular, Stamski asserted that the land areas that Horsley
used to calculate the amount of groundwater recharge available
to dilute the septic system's nitrogen discharge were
"significantly underestimated and invalid."11 Garreffi also
noted that Horsley had completed only two of the four components
of the mass balance analysis set forth in the DEP guidelines.
Although the abutters argued to the board that the missing
elements of the analysis did not call Horsley's conclusions into
question, at oral argument the abutters conceded that whether to
accept Horsley's analysis required "a credibility judgment."
And "[i]t is for the agency, not the courts, to weigh the
11Under the DEP guidelines, the nitrogen analysis component
of a mass balance analysis requires calculation of a septic
system's "area of impact" (AOI). The AOI may be described as
that area of land, down-gradient of the system discharge, that
is available to absorb precipitation, which recharges the
groundwater and thereby dilutes the nitrogen in the discharge
before it reaches a well or other sensitive receptor.
12
credibility of witnesses and to resolve factual disputes. A
court may not displace an administrative board's choice between
two fairly conflicting views, even [if] the court would
justifiably have made a different choice had the matter been
before it de novo" (quotation and citation omitted). Embers of
Salisbury, Inc. v. Alcoholic Beverages Control Comm'n, 401 Mass.
526, 529 (1988). See Dubuque v. Conservation Comm'n of
Barnstable, 58 Mass. App. Ct. 824, 829 (2003) (same, in
certiorari case).
Finally, even assuming that Horsley's calculations were
accurate, the abutters acknowledged at oral argument that
nothing in Title 5 itself prohibits a septic system from causing
nitrogen levels to exceed the State drinking water standard at
an abutter's private well. Nor does Title 5 provide for
revocation of a system's construction permit on that basis.
Thus the board was not required to deny Habitat the permit on
the basis of Horsley's calculations.
There is nothing to the contrary in Reynolds, which arose
not under Title 5 but instead under G. L. c. 40B, governing
comprehensive permits for affordable housing developments. See
Reynolds, 88 Mass. App. Ct. at 339-340. There, the plaintiff
challenged a zoning board's issuance of a comprehensive permit,
on the basis, among others, that the proposed sewage disposal
system would cause nitrogen levels at a neighbor's well to
13
exceed 10 mg/l, making it unreasonable for the board to have
waived certain waste disposal limitations contained in a town
bylaw. Id. at 340, 342. A judge, despite crediting the
evidence of excess nitrogen levels, upheld the permit, ruling it
sufficient that the system was designed to comply with DEP's
Title 5 regulations, which did not require proof that
neighboring wells would not experience elevated nitrogen levels.
See id. at 342, 347.
On appeal, this court proceeded on the basis that the
system complied with Title 5.12 See Reynolds, 88 Mass. App. Ct.
at 348. The court ruled, however, that as a G. L. c. 40B
matter, it was unreasonable for the board to have waived the
more health-protective provisions of the town bylaw in order to
help meet the need for affordable housing. See id. at 350. The
court therefore invalidated the comprehensive permit. See id.
The present case, in contrast, is a challenge under Title 5
to a septic system construction permit. Indeed, here, the
town's zoning board, in issuing a comprehensive permit, denied
Habitat's request under G. L. c. 40B to waive a local leaching
area requirement that was more health-protective than Title 5.
12The court questioned, but did not resolve, whether Title
5's nitrogen loading limitations might apply. See Reynolds, 88
Mass. App. Ct. at 347-348 & nn.13-14. Here, it is undisputed
that they do not, because the system's design flow of 436 GPDPA,
is less than the 440 GPDPA threshold of 310 Code Mass. Regs.
§ 15.214.
14
The G. L. c. 40B ruling in Reynolds does not control here, and
the board did not abuse its discretion in issuing the permit
notwithstanding Horsley's mass balance analysis.
c. Vertical separation. The abutters' second challenge to
the permit concerns Title 5's "vertical separation" requirement:
that the bottom of the "soil absorption system" (SAS) be a
minimum of four feet above the high ground-water elevation
(HGWE). 310 Code Mass. Regs. § 15.212(1)(a) (2014).13 According
to Stamski, test pits in and adjacent to the proposed leaching
area (the location of the SAS) showed the HGWE "consistently at
3 [feet] below the surface." The plans included data from seven
test pits, located in, to either side of, and downhill from the
SAS. In each of those pits, the HGWE was three feet or more
below the surface. Garreffi, who had witnessed some of those
tests, concurred, noting that one of the test pits was only nine
feet from the uphill corner of the SAS. Stamski stated that the
bottom of the relevant component of the SAS would be located one
foot above the existing surface and thus four feet above the
More precisely, that regulation provides: "The minimum
13
vertical separation distance between the bottom of the stone
underlying the soil absorption system above the high ground-
water elevation shall be (a) four feet in soils with a recorded
percolation rate of more than two minutes per inch." 310 Code
Mass. Regs. § 15.212(1)(a). There is no dispute that the soil
at issue here meets that percolation rate requirement. A soil
absorption system is defined in 310 Code Mass. Regs. § 15.002
(2006), and includes a system's leaching area.
15
HGWE. As Garreffi recognized, and as the plans showed, this
would require the installation of fill material.
To challenge this, the abutters submitted Horsley's
calculations of the slope of the water table, based on which he
predicted that the HGWE at the uphill edge of the SAS system
would be less than three feet below the existing surface, and
thus less than four feet below the SAS. Horsley also cited data
from test pits some distance uphill from the SAS, showing the
HGWE to be from twenty to twenty-five inches (i.e., less than
three feet) below the existing surface.
Although the abutters characterize this as "uncontroverted
evidence" that the septic system would violate the vertical
separation requirement, it was directly controverted by
Stamski's assertion, supported by data from seven test pits in
and adjacent to the proposed SAS, that the HGWE was
"consistently at 3 [feet] below the surface." On this record,
the board did not abuse its discretion by declining to accept
either Horsley's methodology (extrapolating the slope of the
water table from a small number of points) or the inferences he
drew from test pit data gathered some distance uphill from the
SAS. Substantial evidence from Stamski, with which Garreffi
concurred, supported the board's conclusion that the vertical
16
separation requirement would be met.14 As we stated supra, we
will not displace the board's choice between two fairly
conflicting views.15 See Embers of Salisbury, Inc., 401 Mass. at
529. The abutters' certiorari challenge to the board's decision
was properly rejected.
2. Private nuisance and trespass claims. As stated supra,
the judge dismissed the nuisance and trespass claims against
Habitat for failure to state a claim, because the abutters had
not pleaded an actual or inevitable invasion of or entry on
their land. We review the sufficiency of the complaint de novo,
taking as true its factual allegations and drawing all
reasonable inferences in the abutters' favor. See Curtis v.
Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). "[W]e look
beyond the conclusory allegations in the complaint and focus on
At oral argument, the board acknowledged that if, during
14
construction, the HGWE is found to be higher than expected,
additional fill in the form of septic sand can be placed
underneath the relevant component of the SAS so as to elevate it
four feet above the HGWE.
It is of no moment here that the judge, in affirming the
15
board's decision on this point, also referred to Title 5's
separate requirement of "at least a four foot depth of naturally
occurring pervious soil below the entire area of the soil
absorption area." 310 Code Mass. Regs. § 15.240(1) (2014). A
judge's decision on certiorari review is a ruling of law based
on the record before the board, "not a finding of fact or one
that in some way involves evidence or credibility
determinations, [and so] we give it no special deference."
Macero v. MacDonald, 73 Mass. App. Ct. 360, 366 (2008). "Our
review is essentially de novo," based on the same administrative
record that was before the judge. Id.17
whether the factual allegations plausibly suggest an entitlement
to relief." Id., citing Iannacchino v. Ford Motor Co., 451
Mass. 623, 635-636 (2008).
A private nuisance claim requires that a defendant have
"caused a substantial and unreasonable interference with the use
and enjoyment of the property of the plaintiff" (quotation and
citation omitted). Rattigan v. Wile, 445 Mass. 850, 856 (2006).
And "[a] trespass is an invasion of the interest in the
exclusive possession of land, as by entry upon it." Amaral v.
Cuppels, 64 Mass. App. Ct. 85, 91 (2005), quoting Restatement
(Second) of Torts § 821D comment d (1979).16
Importantly, "[o]ne is not required to wait until he is
injured before he can apply to a court of equity for relief, but
he is not entitled to seek relief unless the apprehended danger
is so near as at least to be reasonably imminent." Shaw v.
Harding, 306 Mass. 441, 449 (1940). See Sullivan v. Chief
Justice for Admin. & Mgt. of the Trial Court, 448 Mass. 15, 23
(2006) (same); City Council of Boston v. Department of Pub.
Utils., 7 Mass. App. Ct. 379, 380-381 (1979) (same). "A
permanent injunction should not be granted to prohibit acts that
16"The requirement that the interference with the use of
land be 'unreasonable' and 'substantial' helps to distinguish
nuisance from trespass, which may be actionable regardless of
whether the conduct is reasonable or the harm measurable."
Rattigan, 445 Mass. at 856 n.13.
18
there is no reasonable basis to fear will occur." Lightlab
Imaging, Inc. v. Axsun Techs., Inc., 469 Mass. 181, 194 (2014).
The complaint here alleged that, based on Horsley's mass
balance analysis, the nitrogen levels at each of the abutters'
wells "would exceed" the safe drinking water threshold of 10
mg/l. It further alleged that once the septic system is
operational, "pollution will travel through groundwater and into
the [abutters'] wells," substantially and unreasonably
interfering with their use and enjoyment, and invading their
interests in the exclusive possession, of their properties.
In dismissing the nuisance and trespass claims, the judge
stated that the board's approval of the septic system under
Title 5, although challenged by the abutters, showed that their
"claim that invasion and intrusion are undisputedly inevitable
and certain cannot be credited; invasion and intrusion are hotly
disputed." But, faced with this dispute, the judge was required
to take the complaint's factual allegations as true and to draw
all reasonable inferences in the abutters' favor. See Curtis,
458 Mass. at 676. That Habitat's design for the system complied
with Title 5 did not guarantee as a factual matter that the
system would perform so as not to pollute the abutters' wells.
Nor have the parties identified any remedy provided by Title 5
if such pollution occurs. See supra at .
19
Moreover, whether the complaint stated nuisance and
trespass claims did not depend on whether interference with or
invasion of the abutters' properties was shown to be
undisputedly inevitable and certain. Rather, the question is
whether the complaint sufficiently alleged that the injuries are
"so near as at least to be reasonably imminent." Shaw, 306
Mass. at 449. Drawing all reasonable inferences in the
abutters' favor, the complaint did so.17 Although the septic
system has not yet been constructed and thus is not yet
operational, we decline to rule that the abutters must await the
discharge of effluent from the system before being permitted to
seek injunctive relief. Whether the abutters will be able to
prove that the injuries are at least reasonably imminent, so as
to entitle them not merely to seek but to obtain relief, is to
be determined after further proceedings.18
17On appeal the parties have not argued any other issue as
to whether the complaint stated nuisance and trespass claims.
Our ruling is limited to whether the conditions and events that
assertedly would constitute a nuisance or a trespass were
alleged to be sufficiently imminent to state claims for
injunctive relief.
18In this connection we note that ordinarily an
anticipatory injunction against a nuisance "cannot be obtained
where the nuisance depends upon the way in which an enterprise
is conducted, rather than upon the essential character of the
enterprise itself." Dubois v. Board of Selectmen of Dartmouth,
2 Mass. App. Ct. 674, 679 (1974), quoting R. Powell, Real
Property § 707, at 344.6 (1971). See 9 R. Powell, Real Property
§ 64.04[3] (M. Wolf ed. 2023). Whether that principle has any
application to a septic system is a question for another day.
20
Conclusion. The judgment of dismissal is affirmed as to
count one (certiorari) and is reversed as to counts two (private
nuisance) and three (trespass); as to those claims, the case is
remanded for further proceedings.
So ordered.